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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48176
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hello, Im currently on maternity leave. In April, I got an

Customer Question

Hello, I'm currently on maternity leave. In April, I got an email from my employer that my line manager left the post and my former assistant applied and has been appointed. I've been working for them for 10 years while my former assistant who I recruited in 2011 has only been there for less than 3 years. The only reason she got the job is I am in maternity and was not aware of what's happening in the work place. I expressed my concern in a meeting with them and they replied that 1) job was advised nationally for two rounds, I didn't provide my private email to them to opt in for job offer; 2) my former assistant developed very quickly and proved herself to be the suitable one for the post. They are also thinking about making changed to my job spec and trying to get me in for varies meetings. Could you please advise where I stand and whether there is a case to go further?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. can you tell me when you return to work please

Customer: My maternity leave will finish end May.
Ben Jones :

OK thank you, XXXXX XXXXX it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this afternoon. There is no need to wait and you will receive an email when I have responded. Thank you

Ben Jones : Hi, apologies for the delay there have been some technical issues with the site where I was unable to actually type anything in the response box for a while...hopefully you will get this. The position you have found yourself in would quite likely amount to discrimination on grounds of maternity and/or gender. This is because you should not be treated detrimentally during your maternity leave or for being female. This does mean that the most likely grounds for claiming discrimination would be for maternity, especially if the other person that was considered for the promotion was also female. But it is definitely he case that you need to be treated fairly and equally whilst on maternity leave and that means being notified of and included in the same opportunities at work that are available to everyone else. So if a promotion opportunity arises, you should be informed of it and also given the opportunity to apply for it in the same way as anyone else that is not on maternity leave. In the same time you should not be treated detrimentally in the selection because of being off on leave, for example the employer should not use your absences from work and any other factors that may be affected by you not being in work then they decide on your suitability for the job. If you believe that you have not been the rated fairly in the circumstances and overlooked for these opportunities, you could certainly raise the issue with the employer. The first step is to go through the formal grievance procedure. If that fails to get a successful outcome, you have a couple more options - one so to resign and claim constructive dismissal,but that can be risky and you are obviously giving up a lot in the process. Instead you could consider a claim for discrimination, something you can make whilst still employed by the employer and without having to leave your job. So these are the options that are open to you and in the first instance you should consider the grievance option before opting for the others. Hope this clarifies?
Customer: Thank you! It's very helpful. I have asked HR to clarify, here's their reply: In regard to your question below. In the letter you received confirming your maternity leave details there is a paragraph headed Job Vacancies that asks you to provide a private email address should you wish to be kept informed of vacancies within the University, as an alternative your attention is directed to the University website for an up to date list of vacancies. This is the normal process for those on maternity leave.We have no record of you providing an email address.
Customer: how do I get around it?
Ben Jones :

Hello again, it is not a very strong excuse to say that just because you had not provided them with a private email address, their obligations end there. There are other forms of communication available – they could have written to you for starters, they could have called you, not sure if you still had access to work emails but that could have been an option too.


 


They may have had a policy that said you should provide them with a private email address but they should prompt you for this and check you were aware of that rather than just assume you were not interested in updates simply because you had not provided them with such an email.


 


The employer’s failure to try and inform you of any potential vacancies could therefore amount to unfavourable treatment contrary to section 18 of the Equality Act 2010 and/or unlawful detriment contrary to section 47C of Employment Rights Act 1996. Also a helpful case would be that of Visa v Paul, where an employee was successful in her claim that the employer had breached the implied term of mutual trust and confidence and had discriminated against her on grounds of pregnancy/maternity because she was on maternity leave when it failed to inform her of a vacancy that she would have wished to apply for.


 


Hope this helps?

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.
Hello there, it just come to light that my employer is doing some restructuring and is now under consultation -- they put 5 people's job at risk( including me) everyone has to reapply. There were 6 people (my former assistant got the job secured by moving to a new post while I am in maternity. After I complained, they bombarded me with emails and post and phone calls asking me to come in for consultation and prepare to apply for new post available. I got a feeling it's constructional as they did not recruit any cover for my Maternity. I raised it they said they'll have HR to reply back. The new post is the same one I have been appointed to 7 years ago. They now want me to apply for it, which is really annoying. Even I get the job, I would be on same grade(7) while all the other in the team would move up a grade(4 to 5 and 5 to 6, my former assistant jumped from 6 to 8!) is it unfair treatment? What shall I do?
Expert:  Ben Jones replied 3 years ago.
I can't say if it is unfair treatment yet because it would depend on the reasons for the restructuring and what prompted this, which is something that you would know more about once the consultation period has started and you have the chance to discuss this with them in more detail. In terms of what can be done there are a couple of options only really - the first is the grievance route, which you can raise at any time if you are unhappy about something, the next step is to consider either constructive dismissal and sex discrimination if you are dismissed, or of you feel you have no other option but to leave - claim constructive dismissal and discrimination instead.
Customer: replied 3 years ago.
Hello, I had consultation with my employer and got the feeling that they are ganged up trying to squeeze me out--In the new structure, there is only one G7 role which matches my current grade. I said I should be offered it. They said I have to apply as there are significant changes between my current role and the new role therefore, even I have maternity rights I have to apply with anybody else ( Is it true?). I have been adviser/team leader of student support team since 2007. In 2011, my team split in two area, I focus on advisory and the other half focusing on support service. My employer has never changed my job description and there's no PDR ever since to reflect all changes. The new role is team leader of student support service (not even much change in name) I questioned what are the changes, they said in my previous job spec there isn't management duty and some compliance and engagement duty. I said the JD 2007 is out of date, however, all my responsibilities are covered by my PDR between 2008 and 2012 in which clearly showed I have management duty and doing significant amount of compliance work. HR said they will go back and check my file. 10 minutes later, they turned up to say they can't find my PDR documents! I said they can go to check with my previous manager and his PA as they keep both hard copies and electronic copies. They said they will. The consultation period ends on 5 June then all job will be advertised. If they refuse to offer it to me, shall I re apply? My feeling is even I re apply, they may not offer it to me otherwise they won't mess me about. I am ready to go through grievance. I understand they will have to offer me suitable job to match my current role. Is it HRs decision to say how similar/suitable the job is to me? I need someone unbiased in the process, who should I go to? I want my job back, what is the best way forward?
Expert:  Ben Jones replied 3 years ago.
Hello, thanks for getting back to me. Unfortunately your question has expired as you must post any follow up queries within 7 days of the date of the original question. If you need any further help on this subject please post it as a new question on our site - you may start it with 'for Ben Jones' so that I get it and deal with it as fast as I can. Many thanks